Jagdish Singh and Others . . . . Pe((oners v. State of Punjab and Others
Case Details
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-13605-2017 Jagdish Singh and Others . . . . Pe((oners Vs. State of Punjab and Others . . . . Respondents Reserved on: 08.01.2025 Pronounced on: 13.01.2025 **** CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA Argued by:- Mr. Naresh Jain, Advocate for the pe!!oners. Mr. Surya Kumar AAG, Punjab. DEEPAK GUPTA, J. By way of this pe!!on filed under Ar!cle 226/227 of the Cons!tu- !on of India, pe!!oners pray for issuance of writ in the nature of mandamus by direc!ng respondent Nos.1 and 2 to grant full monetary benefits to the pe!!on- ers for the periods during which the writ pe!!ons earlier filed by them re- mained pending. 2. Pe!!oners were working as Sec!onal Officers. They were senior to respondent Nos.3 to 7. Aggrieved by the promo!on of their juniors- respondent No.3 to 7 to the post of Assistant Town Planner, the pe!!oners approached this
Decision
Court by filing CWP No.111 of 1999, which was disposed of on 16.09.2013 (An- nexure P-15) in the following terms: “Having regard to the facts in totality, I am of the opinion that the pe!!on de- serves to succeed and is, thus, disposed of in the following terms: NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 (i) the pe!!oners would be en!tled to be promoted with effect from the date private respondents were promoted, since the pe!!oners are concededly senior to the said respondents. (ii) the respondent-State is mandated to rec!fy the anomaly in the Rules by taking into considera!on what has been observed earlier and in par!cular the merger of cadre since 1982. (iii) Since the pe!!oners have not worked on the post, they would be en!tled to no!onal promo!on with no monetary consequences. However, for all other related service benefits, such a promo!on would be considered to be relevant.” 3. Aggrieved by the denial of monetary consequences despite being held en!tled to no!onal promo!on, pe!!oners assailed the abovesaid order dated 16.09.2013 by filing LPA No.1175 of 2016. However, the said LPA was dis- missed vide order dated 17.10.2016 (Annexure P-18) on the ground of delay as well as merits. Feeling aggrieved, pe!!oners preferred Special Leave Pe!!on (Civil) No.9608 of 2017 before Hon’ble Supreme Court, which was disposed of vide order dated 09.05.2017 (Annexure P-1) in the following terms:- “Delay condoned. Learned counsel for the pe!!oners submits that as soon as the private respondents were promoted, they had approached the High Court in a Writ Pe!!on No.111 of 1999 against the unjust denial of promo!on to the ad- miDed seniors. The pe!!oners herein are admiDedly seniors to those who have been promoted to the post of Assistant Town Planner is also not in dispute, as can be seen from the stand taken by the State Government in the counter affi- davit before the High Court. In such circumstances, it is submiDed that at least during the pe- riod the writ pe!!ons were pending before the High Court, the pe!!oners should have been granted the actual monetary benefits instead of limi!ng it to no!onal basis. This is a maDer that pe!!oners are free to point out before the High Court. Page 2 of 9 NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 Therefore, this special leave pe!!on is disposed of making it clear that in case such a prayer is made in an appropriate manner within thirty days from today, the High Court may consider the same on merits.” 4. Pursuant to the aforesaid order of Hon’ble Supreme Court, pe!- !oners filed present pe!!on seeking the monetary benefits during pendency of the CWP No.111 of 1999 and LPA 1175 of 2016. 5. The present writ pe!!on was allowed by a co-ordinate Bench of this Court vide order dated 15.02.2023, by holding the pe!!oners to be en!tled for monetary benefits from the date of filing of the CWP No.111 of 1999 on- wards along with interest. However, the respondent- State preferred LPA No.884 of 2023, which has been disposed of on 26.07.2023, by seFng aside the order dated 15.02.2023 and remanding the maDer to the Single Bench for adjudica- !on of the issue regarding the claim of the pe!!oners for actual monetary ben- efits on merits. 6. It is contended by learned counsel for the pe!!oners that non- grant of actual monetary benefits is not sustainable in the eyes of law, as pe!- !oners were deprived of the promo!on without any fault on their part. It is urged that if a civil servant is not offered the work, to which he is legally en!- tled, he cannot be deprived of the wages for the said post to which he is ul!- mately held en!tled to. Pe!!oners have always been ready and willing to work and discharge the obliga!ons pertaining to the promo!onal post in ques!on but were deprived of the opportunity to work on the said post by the respondent department. Learned counsel contends further that present case is not the one, where the principle of ‘no work no pay’ would be applicable, because this prin- ciple applies, where an employee voluntarily abstains from discharging his du- !es but this principle cannot be applied to a case, where the employee is kept away from work or is prevented from discharging his du!es pertaining to a par- !cular post by any act or omission of the employer, as is the case in the present writ pe!!on. Learned counsel has relied upon “Union of India v. K.V. Jankira- NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document Page 3 of 9 CWP-13605-2017 man” 1991 AIR (Supreme Court) 2010; “State of Kerala v. E.K. Bhaskaran Pil- lai” 2007(6) SCC 524; “Vidya Parkash Harnal v. State of Haryana” 1995(3) S.C.T. 785 and “Satyavir Singh Shekhawat v. State of Haryana” 2014(4) S.C.T. 233. 7. On the other hand, learned counsel for the respondents contend that pe!!oners have been rightly denied the monetary benefits by this Court in CWP-111-1999 for the period the pe!!oners did not work on the said post, on the principle of ‘no work no pay’ and as such, no injus!ce has been done to them. It is contended that denial of monetary benefits is on the premise that pe!!oners had not actually worked on the promo!onal post of Assistant Town Planner during the period, when the writ pe!!on/appeal preferred by them was pending before this Court and that the benefit of pay and allowances have been rightly awarded with effect from the date, when pe!!oners would have actually assumed the said post of Assistant Town Planner. It is also contended that al- leged delay in deciding the claim of the pe!!oners, who had filed the writ pe!- !on in 1999, cannot be aDributed to the answering respondents. Learned coun- sel for the respondents has referred to “Government of West Bengal v. Dr. Amal Satpathi” 2024(14) Scale 294. With these submissions, prayer is made for dismissal of the pe!!on. 8. This Court has considered submissions of both the sides and have perused the record. 9. It is not disputed that there was joint seniority list inter se pe!- !oners and private respondent Nos.3 to 7. It is also undisputed that pe!!oners were senior to private respondent Nos.3 to 7 and had to approach this Court by filing CWP No.111 of 1999 on account of depriva!on of the promo!on to them with effect from the date their juniors i.e. respondent Nos.3 to 7 were promoted to the post of Assistant Town Planner. Vide order dated 16.09.2013 in CWP No.111 of 1999, pe!!oners have already been held en!tled to be promoted with effect from the date the private respondents were promoted, being senior Page 4 of 9 NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 to the said respondents. 10. Promo!on to the pe!!oners was declined by the respondents without any fault on their part. Thus, it is not the case of denial of promo!on to an employee on account of any fault on his part or on account of penalty im- posed in the past i.e. on account of any misconduct of the pe!!oners. Pe!!on- ers were unable to perform the du!es of promoted post of Assistant Town Plan- ner on account of the fault of the respondents, who did not promote the pe!- !oners ahead of their juniors. The ques!on is whether in such circumstances, when pe!!oners have already been allowed the benefit of no!onal promo!on from the date the private respondents were promoted, would it be jus!fiable to deny them the monetary consequences. 11. It may be noted here that the order dated 16.09.2013 in CWP No.111 of 1999 declining the monetary benefits rela!ng to the promo!onal post to the pe!!oners, has been upheld by the Division Bench of this court in its order dated 17.10.2016 in LPA No.1175 of 2016. Though, Hon’ble Supreme Court, it its order dated 09.05.2017 in Special Leave Pe!!on (Civil) No.9608 of 2017 did not specifically set aside the order dated 17.10.2016 passed in LPA No.1175 of 2016 but liberty was given to the pe!!oners only to make prayer be- fore the High Court to seek actual monetary benefits at least during the period when writ pe!!ons were pending before the High Court instead of limi!ng it to the no!onal basis. 12. In “Union of India v. K.V. Jankiraman” (supra), a similar con- ten!on was raised by the respondents to the effect that principle of ‘no work no pay’ was applicable, where the employee had not actually performed the du!es on a par!cular post. Declining the said conten!on, it was held by Hon’ble Supreme Court as under:- “25. We are not much impressed by the conten!ons advanced on be- half of the authori!es. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to Page 5 of 9 NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 work is kept away from work by the authori!es for no fault of his. This is not a case where the employee remains away from work for his own reasons, al- though the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases' where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clear- ance in the disciplinary proceedings or acquiDal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts aDributable to the employee etc. In such circumstances, the concerned au- thori!es must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. ……” 13. In another case !tled as “State of Kerala v. E.K. Bhaskaran Pillai” (supra), it was held by Hon’ble Supreme Court that principle of ‘no work no pay’ cannot be accepted as a rule of thumb and that it is very difficult to set out any hard and fast rule. In the case before Hon’ble Supreme Court, the pe!!oner was promoted with retrospec!ve w.e.f 15.09.1961. Benefit in terms of salary was given with effect from 15.06.1972 i.e. from the date he filed OP No.585 of 1975. Pe!!oner had not approached the Court for the back wages from 15.09.1961. The High Court granted the benefit from the date of filing of the pe!!on. Hon’ble Supreme Court held the same to be reasonable and dismissed the ap- peal. It will be useful to reproduce the observa!ons made by Hon’ble Supreme Court. “3. ……. Some!mes in the maDer when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and Page 6 of 9 NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 direc!on is given for reconsidera!on of his case from the date persons junior to him were appointed, in that case the Court may grant some!me full benefits with retrospec!ve effect and some!mes it may not. Par!cularly when the administra!on has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are excep!ons where courts have granted monetary benefits also.” 14. A Division Bench of this Court in “Vidya Parkash Harnal v. State of Haryana” (supra) has also considered the similar issue. It has been held as un- der: “7. Similarly, the argument that the pe!!oner was not en!tled to the grant of emoluments on the principle of "No work, no pay" is apparently mis- conceived and based upon wrong no!ons of law. If a civil servant is not offered the work to which he was legally en!tled, he cannot be deprived of the wages for the post to which he subsequently is held en!tled to. PermiFng such a course to be adopted would be encouraging the imposi!on of double penalty, that is, firstly by declining the civil servant his right of promo!on and secondly by depriving him of the emoluments to which he would have been en!tled to upon promo!on which subsequently is considered in his favour. Depriva!on to work against the post to which a civil servant is en!tled on promo!on is always at the risk and responsibility of the State and cannot be made a basis for depriving such a civil servant of the emoluments to which he was en!tled, had he been promoted in accordance with the rules at the !me when he became eligible for such promo!on. The Courts cannot ignore the magnitude of the sufferings and the pains to which a civil servant is subjected on account of depriva!on of the monetary benefits par!cularly in this age of skyrocke!ng prices and non-availability of essen!al requirements of livelihood. The Court cannot shut its eyes and forget the holocaust of economic depriva!on to the pe!!oner and his dependents. Such a depriva!on might have upset the career of the dependents, depriving the society of the services of such youth and Page 7 of 9 NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 budding dependents or children of the pe!!oner. The execu!ve once being sa!sfied that a civil servant was en!tled to the promo!on with retrospec!ve effect cannot deprive him of the benefits of salary accruing on account of such promo!on from an early date without assigning valid, cogent and specific reasons." Similar view was taken by another Division Bench of this Court in “State of Haryana v. Bani Singh Yadav” 2005(1) S.C.T. 355”. 15. In the present case, as has already been observed, pe!!oners were deprived promo!on without any fault on their part. It is not the case of re- spondents that pe!!oners were facing any disciplinary or criminal proceedings due to which they were deprived of the promo!on. They have been held en!- tled by this Court to the promo!on from the date their juniors were promoted. On being superseded, pe!!oners had approached this Court by filing CWP No.111 of 1999 and succeeded in the pe!!on. In such circumstances, the legal posi!on as discussed above is clearly applicable to this case and pe!!oners can- not be deprived of the monetary benefits at least from the date of filing of the writ pe!!on CWP No.111 of 1999. 16. As far as “Government of West Bengal v. Dr. Amal Satpathi” (supra) relied by learned counsel for the respondents is concerned, in that case it was held by Hon’ble Supreme Court that promo!on becomes effec!ve upon the assump!on of du!es on the promo!onal post and not on the date of occur- rence of the vacancy or on the date of recommenda!on. As the respondent in that case had superannuated before his promo!on was effectuated, so he was held not en!tled to retrospec!ve financial benefits associated to the promo- !onal post as he did not serve in that capacity. 17. The above cited authority is dis!nguishable on facts of the present case, because in that case before Hon’ble Supreme Court, the respondent had superannuated before his promo!on was effectuated. However, in the present case, the date of re!rement of the pe!!oners as per the Seniority List (Annex- Page 8 of 9 NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document CWP-13605-2017 ure P-3) is 31.03.2015, 31.12.2013 and 28.02.2015 respec!vely, which is subse- quent to the order dated 16.09.2013 passed by this Court in CWP No.111 of 1999, by which they were held en!tled to be promoted from the date their ju- niors were promoted. As such, respondent cannot draw any advantage of the cited authority. 18. As such, the present pe!!on is hereby accepted. Pe!!oners are held en!tled to all the monetary benefits from the date of filing of CWP No.111 of 1999 onwards. They shall also be en!tled to interest @ 6% per annum on all these monetary benefits commencing from the date of that pe!!on !ll the date of actual realiza!on. Pe!!on is allowed accordingly. 13.01.2025 Nee(cid:17)ka Tuteja Whether speaking/reasoned? Whether reportable? Yes/No Yes/No (DEEPAK GUPTA) JUDGE NEETIKA TUTEJA 2025.01.13 16:37 I attest to the accuracy and integrity of this document Page 9 of 9